Professional Documents
Culture Documents
2d 667
Pierce Gerety, Jr., New York City (Robert Kasanof, The Legal Aid
Society, New York City, on the brief), for appellant.
Howard J. Stechel, Asst. U.S. Atty., Brooklyn, N.Y. (Robert A. Morse,
U.S. Atty., and L. Kevin Sheridan, Asst. U.S. Atty., Brooklyn, N.Y., on
the brief), for appellee.
Before MOORE, MULLIGAN and TIMBERS, Circuit Judges.
PER CURIAM:
Appellant Steven Paul Valot appeals from a judgment of conviction after a one
day nonjury trial on June 29, 1972 in the Eastern District of New York, before
Mark A. Costantino, District Judge, finding appellant guilty on one count of
importing 7.1 kilograms of hashish into the United States on November 21,
1971, in violation of 21 U.S.C. Sec. 952(a) (1970); on a second count of
possessing and bringing the same hashish on the same date into the United
States on board an aircraft, in violation of 21 U.S.C. Sec. 955 (1970); and on a
third count of possessing the same hashish on the same date with intent to
distribute it, in violation of 21 U.S.C. Sec. 841(a) (1970). On August 15, 1972,
appellant was sentenced by Judge Costantino on each count to a consecutive
term of four years imprisonment. He was also sentenced to a special parole
term of two years and was fined $2500.
On appeal Valot claims (1) that the district court erred in imposing consecutive
sentences upon the multiple counts under the Comprehensive Drug Abuse
Prevention and Control Act of 1970; and (2) that the district court erred in
denying appellant's motion to dismiss the indictment on the ground that the
government was not ready for trial within the time prescribed by the Second
Circuit Rules Regarding Prompt Disposition of Criminal Cases. 28 U.S.C.A.
(Supp.1972).
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Upon the authority of Scafo, we therefore remand this case to the district court
for a further hearing on the motion to dismiss the indictment for failure to
comply with the Second Circuit Rules, supra, and we direct the district court, as
we did in Scafo, 470 F.2d at 751, as follows:
13 district court should make findings of fact on the issues. If the district court
"The
finds, after taking such additional evidence as may be relevant, that the motion
should be denied, it shall enter new final judgment based upon the record as
supplemented by further testimony and findings, thereby preserving to the appellant
his right to further appellate review.
On the other hand, if the motion is granted, the indictment should be dismissed."
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This panel retains jurisdiction over this case. Depending upon the outcome of
the hearing on the issue for which the case is remanded, any further or
supplemental appeal will be referred to this panel which will then determine all
issues, including that involving the propriety of the consecutive sentences. On
that issue, if it becomes ripe for us to rule upon it, no further briefs need be
filed.
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Remanded.